DOH Denied My Medical Marijuana Permit Application. Now what?

At 1 PM today, the Pennsylvania Department of Health plans to announce the recipients of the first twelve permits to grow and process medical marijuana.  A live stream of the event is available at http://pacast.com/players/live_doh.asp.  Most applicants will be denied permits, because the odds are steep – only about one applicant in fifteen will be successful (except in Southeastern PA where only about one applicant in thirty will be successful). 

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HIKO Energy v. PUC:  Divided Commonwealth Court Upholds $1.8 Million Civil Penalty


In HIKO Energy, LLC v. Pennsylvania PUC, No. 5 C.D. 2016, slip op. (June 8, 2017), a divided Commonwealth Court affirmed the Public Utility Commission’s (PUC) civil penalty of approximately $1.84 million against HIKO Energy, LLC (HIKO), an electric generation supplier (EGS) which, during the polar vortex effects of the winter of 2014, intentionally charged 5,700 customers a rate that exceeded their “guaranteed” introductory rate on nearly 15,000 invoices at the express direction of its management and chief executive officer (CEO).  The PUC’s policy for evaluating litigated and settled proceedings involving violations of the Public Utility Code (Code), which exposes companies who are unwilling or unable to negotiate a settlement to greater penalties, resulted in a penalty far greater than those imposed on EGSs that settled complaints stemming from the 2014 polar vortex.  The Court’s decision endorses both the PUC policy and its result, and underscores the importance of retaining counsel with the experience to negotiate early settlements in complaints alleging serious Code violations. 

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PA Supreme Court Further Demolishes Act 13 in Robinson Township Remand Appeal


On September 28, 2016, the Pennsylvania Supreme Court (Court) ruled[1] on a Commonwealth Court remand decision[2] of the Robinson Township 2013 Court decision,[3] where the Court held key provisions of Act 13[4] (the statute implementing major changes in Pennsylvania’s oil and gas laws and the ability of local government to regulate this industry) were unconstitutional (HMS Blog).  In the 2016 Robinson Township decision, the Court:  (1) upheld the Commonwealth Court’s holding that provisions related to Public Utility Commission (PUC) review of local ordinances are unseverable from unconstitutional provisions and thus unenforceable, and (2) held four additional provisions of Act 13, including the grant of eminent domain, unconstitutional. 

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Uber Week for Uber in PA - Commonwealth Court Affirms PUC’s Authorization of Raiser’s Service (an Uber Subsidiary) and PUC Decreases Recommended $49 Mil Civil Penalty to $11 Mil


            In an April 19, 2016 Opinion, the Pennsylvania Commonwealth Court[1] affirmed the Public Utility Commission’s (PUC) grant of a certificate of public convenience (CPC) for experimental authority to operate as a common carrier to Raiser-PA, LLC (Raiser) in Pennsylvania, excluding Philadelphia.[2]  Raiser is a subsidiary of Uber Technologies, Inc. (Uber), which licenses the technology to Raiser that allows users to request a ride via smartphone app. 

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PA Supreme Court Eliminates Agency Appeal Waiver Trap

Last week on our list of waiver traps for Pennsylvania appellate practitioners (“Taking an Appeal in PA? 10 Waiver Traps to Avoid,” 24 Nov. 2014), we included the warning “be specific enough in your petition for review.”  Fortunately, effective January 1, 2015, that trap has largely disappeared, as the result of yesterday’s amendment to Pa. R.A.P. 1513(d).  That rule, which requires the petitioner from an agency order to include in an appellate petition for review a “general statement of the objections to the order or other determination,” has too often been the basis for a finding of waiver of issues not specifically mentioned, sometimes resulting in the outright quashing of an entire appeal on essentially technical “gotcha” grounds.  The rule as amended retains the requirement for a “general statement of objections,” but adds the important qualification that “the omission of an issue from the statement shall not be the basis for a finding of waiver if the court is able to address the issue based on the certified record.”  The Official Note explains that the purpose of the amendment is to “preclude a finding of waiver” if an issue that is briefed but omitted from the petition for review can be addressed by the court on the basis of the certified record.  In other words, if an issue is otherwise preserved, but overlooked in the petition for review, that fact will no longer be a basis for a finding of waiver.  One less thing to worry about for administrative law practitioners! A copy of the amendment to Rule 1513 can be found here.

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Taking an Appeal in PA? 10 Waiver Traps to Avoid


Pennsylvania’s appellate rules and the ever-evolving case law interpreting them can make it a challenge to even get to the merits of an appeal.  Don’t get caught on the wrong side of a waiver trap. Some reminders:

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Supreme Court Orders Shorter Appellate Briefs

The Pennsylvania Supreme Court has adopted rule changes that will result in shorter appellate briefs based on a “word count” approach of the type used in the Federal Rules of Appellate Procedure.  The current volume limits are 70 pages for principal briefs and 25 pages for reply briefs. Under the new rules, the volume limits are a “word count” of 14,000 words for principal briefs (approximately 56 pages assuming 250 words per page) and 7,000 words for reply briefs (approximately 28 pages assuming 250 words per page).  A brief based on word count must be accompanied by certification of counsel that the brief complies with the limit.  The rule permits continued use of a page count to determine volume, but at the reduced page count levels of 30 pages for principal briefs and 15 pages for reply briefs.

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Shorter Briefs, Fewer Waiver Traps

Under two new proposals to amend Pennsylvania’s Rules of Appellate Procedure lawyers will be writing shorter briefs with less risk of waiver.

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PRESS RELEASE

KEVIN J. McKEON APPOINTED TO PA. APPELLATE COURT  PROCEDURAL RULES COMMITTEE

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Citing Unreported Opinions: Worth the Trouble?

Effective in 2011 unreported opinions of Pennsylvania’s Commonwealth Court may be cited as persuasive authority, though not as binding precedent.

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Is Order Granting New Trial in Statutory Appeal Appealable?

Orders granting new trials in civil and certain criminal proceedings are immediately appealable pursuant to Pa. R.A.P. 311 (a)(6), but is an order granting a new trial in a statutory appeal immediately appealable under the same Rule?  In Pittsburgh Water & Sewer Authority v. Gladstone, 999 A. 2d 1248 (Pa. Cmwlth. 2010), the Commonwealth Court said it is not, because a statutory appeal is not a “civil action” within the meaning of the Rule, and is not a “proceeding” within the meaning defined in the Judicial Code.  Under the facts and circu¬mstances presented in the case, however, the order was appealable as a collateral order because it met the three prongs of the collateral order test (it was “separable” from the main cause of action, because the error of law cited by the trial court for granting a new trial did not affect the merits of the underlying claim; it involved a right too important to be denied review because re-litigation of a matter is onerous and is the reason the Supreme Court promulgated Rule 311(a)(6) permitting an immediate appeal from an order in a civil action or proceeding granting a new trial; and the question presented was such that if review was postponed until final judgment the claim would have been irreparably lost,  because the claim was that appellant should not be required to re-litigate the matter in a new trial.

 

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Is the Order Final? That’s the Appellate Court’s Call

Although trial courts and agencies often take a position on whether an order they have entered is final for purposes of appeal, it is essential for counsel to make an independent assessment of appealability, because orders that lower tribunals believe to be interlocutory and unappealable frequently are deemed final by the appellate court.  That was the result in Fiore v. County of Allegheny, ___ A. 3d ___, ___ n. 3 (Pa Cmwlth. 2011) (1805 CD 2009, decided February 1, 2011), where a landowner who had valuable coal rights under South Park in Allegheny County filed  two actions in the court of common pleas, one seeking a declaration that he had a right to strip mine and the other seeking appointment of a Board of Viewers.  After the County filed preliminary objections to both actions, alleging among other arguments in each that the landowner had no right to strip mine, the trial court held a hearing on the issue of whether the landowner had a right to strip mine and then entered an order stating that based on the evidence he did not, without ever expressly ruling on the preliminary objections.  In his opinion, the trial judge argued that the order was not final because the preliminary objections remained pending, but the Commonwealth Court viewing the matter from a practical perspective, held that the order was final because it effectively disposed of at least one of the preliminary objections – whether the landowner had the right to strip mine – and thus effectively disposed of both cases.

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Make the Most of Reply Brief Opportunity

Pennsylvania’s appellate rules permit a reply brief but limit the scope to “matters raised by appellee’s brief and not previously addressed in appellant’s brief.”  Pa. R.A.P. 2113(a).  Ideally, the reply brief is the opportunity for the appellant to add sharper focus the issues on appeal by responding to appellee’s advocacy in a way that underscores appellant’s principal themes.  Make the most of it.

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Rule 1925 Remains a Waiver Trap

The Supreme Court’s recent decision in Berg v. Nationwide Mutual Insurance Co., __Pa. __, 6 A.3d 1002 (2010) (plurality opinion) serves notice that a majority of the Court continues to expect strict compliance with all of the very technical requirements of Pa. R.A.P. 1925(b)’s “concise statement of errors complained of on appeal” procedures.  Although the upshot of the Court’s five opinions was that under the egregious facts presented no waiver was found, the broader message is that, even after 2007 amendments intended to reduce the number of appeals dismissed on waiver grounds for Pa. R.A.P. 1925 technical violations, counsel needs to adhere to all of Rule 1925’s technical requirements, use extreme caution, and essentially treat compliance with the letter of Pa. R.A.P. 1925 in the same way that jurisdictional deadlines are treated.

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Check the Certified Trial Court Record for Omissions

Did you know that Pennsylvania appellate courts may find an issue waived where a document relevant to the issue is omitted from the original record certified by the trial court, even though the document is available to the appellate court in the reproduced record and there is no dispute that the document was admitted into evidence and relied on by the trial court?

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Justiciability of Pre-enforcement Challenge to Agency Regulations Reaffirmed

Revisiting the Arsenal Coal exception to the general rule that the exhaustion doctrine bars a challenge to administrative agency regulations until after the challenger is aggrieved by their application, the Supreme Court reaffirmed the availability of pre-enforcement review where the issue presented is ripe and the challenged regulations have an immediate impact on an industry such that the delay and uncertainty associated with enforcement and subsequent judicial review would cause hardship.  Bayada Nurses, Inc. v. Dept. of Labor and Industry, __Pa. __, ___A. 2d ___ (2010) (67 MAP 2008, decided November 17, 2010).

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Pennsylvania Standing Rule

Finding that an asbestos plaintiff defending a motion for summary judgment has standing to facially challenge the constitutionality of a liability-capping statute on dormant Commerce Clause and Equal Protection grounds, the Pennsylvania Supreme Court recently clarified the role of the “zone of interest” inquiry within the familiar “direct-immediate-substantial” test for standing. Johnson  v. American Standard, __Pa. __, 8 A. 3d 318 (2010).

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